London Borough of Hammersmith & Fulham (18 003 840)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 18 Apr 2019

The Ombudsman's final decision:

Summary: Ms X complains about the Council’s handling of her case while she was a special guardian to a child. She says the Council had not given her information about being a special guardian and had not paid her financial support correctly. The Ombudsman does find fault with the Council for not paying Ms X accurately. However, this has not caused Ms X an injustice because the Council has overpaid Ms X overall. The Ombudsman does not fault for the Council’s other actions.

The complaint

  1. Ms X complains about the Council’s handling of her case while she was a special guardian to a child, A. She complains:
  • she was not made properly aware of everything involved with being a special guardian. She says the Council had not provided information to her and was not clear on all aspects of the support plan due to her reading difficulties;
  • the Council stopped financial support relating to loss of earnings after one year of caring for A, and;
  • the amount paid as loss of earnings was lower than what she was earning in her part time job.

Ms X also complains about issues with claiming child tax credit for A and her other two children.

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What I have investigated

  1. I have investigated Ms X’s complaints about the Council’s financial support and what information the Council provided to her before she was appointed special guardian to A.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). I have exercised discretion as it appeared from the evidence the Council had been dealing with Ms X’s complaint for 12 months. It was reasonable for Ms X to have allowed the Council time to resolve her complaint. To address all of Ms X’s complaints appropriately, it was important to look at the Council’s actions from four years ago. I used my discretion to investigation as the Council had the records available and it was still possible to conduct a fair investigation.
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke with Ms X and considered the information she provided
  2. I made enquiries and considered the information the Council provided
  3. There have been significant delays in obtaining the material requested from the Council. The Council has also not provided all the evidence it referred to when it provided its response to my enquiries.
  4. I sent a draft decision to Ms X and the Council and considered their comments.

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What I found

  1. Special Guardianship Orders (SGO) is an order appointing one or more individuals to be a child’s special guardian. It is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement.
  2. The Special Guardianship Regulations 2005 sets out the circumstances when a local authority may provide financial support. It says that financial support is payable to a special guardian to facilitate arrangements for a person to become the special guardian of a child where the local authority consider such arrangements to be beneficial to the child’s welfare or to support the continuation of such arrangements after a special guardianship order is made.
  3. Regulations say councils must consider other benefits available to the guardian and child, the guardian’s financial resources, the amount of money they realistically need, and the child’s financial needs and resources. This is called means testing.
  4. Statutory guidance sets out that financial issues should not be the sole reason for a special guardianship arrangement failing to survive. It notes the central principle that financial support should be payable in accordance with the Regulations to help secure a suitable special guardianship arrangement where such an arrangement cannot be readily made because of a financial obstacle.
  5. Statutory guidance also sets out clear expectations on councils to consider what support guardians need and, where necessary, prepare a plan setting out what should happen, how support will be evaluated and reviewed

What happened

Information provided to Ms X before the special guardianship order

  1. Ms X was asked by a friend to care for A, because his mother could not care for him. Two social workers from the Council completed an assessment of Ms X in January 2014, the purpose of which was to determine Ms X’s suitability as a special guardian.
  2. In this assessment, the social workers recorded that Ms X was made fully aware of the financial package in relation to the SGO, the fact that it was means tested and that it could be stopped after three years. The Council note that Ms X had expressed concern about this as she would struggle financially to provide for A if she did not receive financial support.
  3. The assessment also highlighted other orders that were discussed with Ms X. The social worker noted she spoke with Ms X about adoption but that Ms X was happier applying for a special guardianship order because she was not able to offer a home without financial support. The social worker also noted she told Ms X the Council were not looking for a fostering arrangement and made it clear that placing A in her care would be a permanent arrangement, like an adoption.
  4. The social worker did record that it appeared Ms X struggled to understand what a SGO was, and the difference between a SGO and a fostering arrangement. The social worker said she explained the difference to Ms X and advised her to get independent legal advice.
  5. Ms X said she received one hour of free legal advice and the Council recorded she received legal advice in January 2014.
  6. The social workers’ assessment recommended Ms X be considered a permanent carer to A.
  7. The Council also said they provided Ms X with a special guardianship support plan in February 2014. The plan outlined the identified needs of A and the package of support Ms X would receive if she received a SGO. In this plan, the Council outlined it would explore whether it was possible to offer financial remuneration for Ms X’s loss of earnings. The plan also noted Ms X received legal advice and that the Council would pay for more legal consultation.
  8. A’s birth mother made allegations against Ms X. Following enquiries, the Council withdrew its recommendation for Ms X to be A’s special guardian.
  9. In June 2015, the court granted Ms X a SGO.

Loss of earnings

  1. The Council said it held two support planning meetings with Ms X following the SGO. It said these meetings took place in July and August 2015, before A lived with Ms X. The Council explained the purpose of the meetings were to discuss the needs of A and the package of support available to Ms X. Refences to these meetings in Ms X’s support plan but I have not seen any evidence of what was discussed during the meetings. A went to live with Ms X in August 2015.
  2. Ms X’s support plan, dated July 2015, noted the period it was going to pay Ms X for her loss of earnings was six months. This was because Ms X was going to take six months off work to care for A. The Council agreed to extend the loss of earning for a maximum of 12 months and recorded that this was not renewable. The plan noted the loss of earnings would start from June 2015.
  3. The Council said it met with Ms X for another support planning meetings in October 2015. Again, the Council did not provide evidence of what was discussed during this meeting.
  4. The Council amended the support plan in November 2015. In this plan, the Council recorded that Ms X had raised concerns that she was left worse off financially as she no longer received her working tax credit from HMRC. It noted that two social workers completed an assessment of her income and it was concluded Ms X was worse off financially. The Council agreed to pay Ms X the full amount of her loss of earnings. The November plan noted that the loss of earnings would start from August 2015 and be paid for a year.
  5. The November support plan confirmed Ms X would receive £190.18 a week to cover her loss of earnings beginning from August 2015. The November support plan said this was the exact earnings Ms X received prior to A being placed with her. The Council said it provided Ms X with a written copy of the support plan. Ms X said she had difficulty reading English.
  6. There is no evidence to suggest Ms X requested the Council make any reasonable adjustments for this, such as asking the Council to provide documents in another language or to provide information face to face. There is also no evidence that Ms X contacted the Council to tell it she did not understand the support plan.
  7. The Council ended Ms X financial support for loss of earnings in August 2016.
  8. In January 2017, the Council noted during a home visit that Ms X struggled with reading and writing.

Special guardianship allowance

  1. The support plan set out that Ms X would receive a special guardianship allowance of £135 a week. This amount was inclusive of child tax credit and child benefit. The plan confirmed that if Ms X were to apply for these benefit separately from HMRC, then the Council would take off the amounts from her allowance. This was to ensure Ms X was not paid twice.
  2. The Council said Ms X told it she would claim for child benefit and child tax credit from HMRC.
  3. In January 2017, the Council contacted HMRC and confirmed Ms X was not receiving child benefit. The Council helped Ms X make a claim for these with HMRC. The Council agreed to pay Ms X child benefit until the matter was resolved. The Council said HMRC processed Ms X’s claim in April 2017.
  4. The support plan confirmed that all financial support was subject to an annual review by the Council. The Council started a financial review of Ms X’s finances in January 2017. The review was completed in March 2017 and Ms X’s special guardian allowance increased to £147 a week, beginning from April 2017. The Council said this was the highest level of allowance.

Payments made to Ms X: July 2015 to November 2017

  1. The Council has provided me with financial information related to the payments it made to Ms X, covering the period from when A came to live with her to when Ms X stopped caring for A.
  2. Due to the amount of information, it would not be practicable to detail every single payment made. However, I have gone through the payments in detail with the Council and scrutinised each payment made.
  3. The evidence suggests there were both under and over payments made by the Council. This was based on what the support plan said Ms X would receive in financial support. I have taken a rough estimate of the over and under payments to produce an overall figure. The result of this was the Council had overpaid Ms X.

Breakdown of special guardianship placement

  1. Council records showed there were concerns about Ms X’s motivation to care for A in 2015. There were also concerns about Ms X’s care of A and her ability to work openly and honestly with the Council.
  2. In February 2016, Ms X told the Council she could not continue to care for A. Ms X then told the Council a week later she would continue to care for A. The Council noted there were concerns about Ms X’s motivation to care for A
  3. Ms X told the Council, in September 2016, she did not want to go back to work until A was in full time education. The Council told Ms X it would pay for child care costs if she returned to work.
  4. In December 2016, Ms X again told the Council she could not care for A and asked the Council to organise for him to be moved from her care.
  5. In January 2017, the Council went to the job centre with Ms X to help her apply for job seekers benefit. The Council paid for Ms X’s transport to the job centre. The Council said Ms X did not complete the application because she said the money would not be enough.
  6. Ms X asked the Council to pay for her utilities bills because she was struggling financially. The Council used its discretion to pay for these because it was aware the placement was unstable. The Council said it paid Ms X twice for the bills by mistake. The Council said Ms X did not tell it of the double payment.
  7. Ms X stopped caring for A in November 2017.

Analysis

Information provided to Ms X before the special guardianship order

  1. There is evidence the Council met with Ms X several times before she was appointed A’s special guardian to complete an assessment of Ms X’s suitability as a permanent carer to A.
  2. In this assessment, the Council noted it discussed other options, such as adoption, with Ms X. The evidence also suggests the Council made it clear to Ms X that an SGO was not the same as a fostering arrangement. There is some evidence to suggest Ms X understood the information provided because she told the Council she would be happier with a SGO, rather than adoption, because of the financial support that she could receive.
  3. The evidence also suggests the Council recognised Ms X was struggling to understand what a SGO was and therefore advised her to seek independent legal advice. The Council confirmed she received independent legal advice in January 2014 and Ms X said she received one hour of legal advice before she was granted the SGO.
  4. Councils have some responsibility to provide potential special guardians with information about SGOs. This is to ensure the person who applies for the SGO is aware of their responsibilities and what support is available.
  5. The evidence suggests the Council had provided Ms X with information about a SGO and what support was available to her if she was to become A’s special guardian. While there was concern Ms X did not fully understand what being a special guardian involved, the Council recognised this by explaining to Ms X the difference between a SGO and a fostering arrangement. The Council also paid for Ms X to receive independent legal advice.
  6. The Council also provided Ms X with a support plan before the court order which outlined what services she would receive from the Council to support her. It also outlined the financial support the Council would provide if she was to become A’s special guardian. It noted she would receive a SGO allowance of £135 and that the Council would consider agreeing financial remuneration for her loss of earnings. The plan also noted Ms X had received legal advice and that the Council would pay for her to have further legal consultation.
  7. Therefore, I am satisfied the Council did provide Ms X with appropriate information (before she was granted the SGO) about SGOs, her responsibilities, and the support she would receive from the Council.

Loss of earnings

  1. The Council completed a support plan for Ms X. In the plan, the Council noted it would pay Ms X loss of earnings for six months. This was later increased to a maximum of 12 months. The plan clearly stated this was not renewable. While I acknowledge the July 2015 support plan noted the loss of earnings would start from June 2015, the November 2015 stated it would be paid from August 2015. This amended support plan would have overruled what was stated in the earlier support plan.
  2. The support plan also highlighted that Ms X had raised concerns she would be left financially worse off because of the SGO. The Council agreed she would be worse off and therefore agreed to pay the exact earnings she was received prior to the SGO. This was recorded in the care plan as £190.18 per week.
  3. The Council ended the loss of earnings payments in August 2016. This was 12 months after the loss of earnings payments began. This was therefore in line with the support plan. Therefore, the Council was not at fault for stopping the loss of earnings payments after 12 months.
  4. It is noted Ms X said she had difficulty reading English. There is evidence the Council was aware of this, but not until January 2017. There is no evidence Ms X made the Council aware of this difficulty or that she has asked the Council to make any adjustments for this before January 2017.
  5. It would have been reasonable to expect Ms X to have told the Council if she did not understand the contents of the support plans because of her difficulty with written English.
  6. Further, although Ms X now says she had difficulty reading English and that the amount she was being paid was not the same as what she earned before the SGO, she did not raise any of these specific concerns with the Council at the time. It would be reasonable to expect her to have done this.
  7. For these reasons, I am satisfied Ms X would have been aware, from November 2015, of the period the Council would pay her for her loss of earnings. I am also satisfied the loss of earnings Ms X received from the Council was the same as what she had received in wages prior to A being placed in her care.

Special guardianship allowance

  1. The evidence shows the Council clearly set out the amount Ms X would receive as a special guardianship allowance. As above, if Ms X did not understand this plan, it would have been reasonable for her to raise it with the Council at the time.
  2. Ms X’s SG allowance was £135 a week. This figure was inclusive of child tax credit and child benefit. As Ms X told the Council she would claim this directly with HMRC, it was right of the Council to deduct these amounts from the allowance. Therefore, there is no evidence of fault here.
  3. The Council completed a financial review which it needed to do. The result of this review was that Ms X’s SG allowance was to increase to £147 a week. The Council must complete a financial review annually. Therefore, there is no evidence of fault in the Council’s actions to complete a financial review as this was the correct process to follow.

Payments made to Ms X: July 2015 to November 2017

  1. I have not detailed every payment made as it would not be practical. However, I am satisfied I have examined the financial payments and understood what each payment was supposed to be for. I have then used this to estimate what the Council should have paid Ms X each week.
  2. I am satisfied the evidence shows the Council had made both under and over payments to Ms X. This appears to be fault.
  3. However, I do not consider the identified fault has caused Ms X any injustice. This is because the overall total shows the Council has overpaid Ms X by a significant amount. I worked this figure out by deducting the total underpayments by the total overpayments.

Breakdown of special guardianship placement

  1. Statutory guidance sets out that financial issues should not be the sole reason for a special guardianship arrangement failing to survive. It notes the central principle that financial support should be payable in accordance with the Regulations to help secure a suitable special guardianship arrangement where such an arrangement cannot be readily made because of a financial obstacle.
  2. The evidence suggests the Council should have been aware the placement was unstable from February 2016. This is because Ms X told the Council she could not continue to care for A. However, this appears to have resolved itself as Ms X then told the Council she would continue to care for A.
  3. The evidence supports that the Council acted when Ms X said she was unable to care for A because of financial difficulties. The Council support Ms X to attend the job centre to receive job seekers benefit to increase her income. However, Ms X did not complete the application. The evidence also shows the Council paid Ms X’s utilities bills because Ms X said she was in financial difficulty and could not afford to care for A. It appears the Council paid for this twice by mistake.
  4. I am satisfied the evidence shows the Council acted appropriately when it became clear the placement was unstable. It provided Ms X with the financial assistance agreed and went further by giving her money for her utilities. This is not something the Council had to do but shows the Council aware the placement was unstable due to financial reasons.
  5. Further, I have found that Ms X was aware of her responsibilities as a special guardian before she put herself forward to be A’s potential special guardian. She was also aware of the financial support she would receive from the Council. It is reasonable to expect Ms X to have weighed up the financial implications of being A’s carer before she put herself forward to be A’s special guardian considering she is responsible for the management of her finances. It is unreasonable to place all the burden of preventing the breakdown of the placement for financial reasons solely on the Council.
  6. There is also evidence the Council were concerned about Ms X’s motivation to care for A, of the care being provided to A, and of Ms X’s ability to be open and honest with the Council. On balance, it is not possible for me to say it was solely for financial reasons that the placement broke down.
  7. Therefore, I do not find fault with the Council’s actions during the period it was apparent the placement was unstable as they were in line with statutory guidance.

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Final decision

  1. I find the Council at fault for not paying Ms X accurately but that this did not cause Ms X any injustice as the Council overpaid her overall. I have not found fault with the Council’s other actions. I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I have not investigated Ms X’s complaints about issues with claiming child tax credits. This is because it is a matter for HMRC.

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Investigator's decision on behalf of the Ombudsman

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